tv [untitled] November 11, 2010 2:00pm-2:30pm PST
and i -- my understanding of that is that obviously if we do this investigation and we find there are either new significant impacts, or new feasible mitigation measures, or new feasible alternatives related to significant impacts, that triggers recirculation of the eir. the second scenario is we do this investigation and we don't change our ceqa conclusions, there is no prescriptive direction as to how that would be distributed. i suggest we basically would do what we do with publication of the c & r documents, we would do the 10 to 14 days so there's a reasonable opportunity to review the materials. rather than being without an opportunity to digest. since the hearing, we have tried
to look into some of the specific substantive questions, commissioner sugaya committed two of the letters that were read into the letter as articulation of the concerns he was addressing. susan brand holly distributed a letter yesterday which you received, which commented not too favorably on my interpretation of things, and her own interpretations of the proceedings two weeks ago, those are the only formal communications we have had since two week ago and there has been dialogue within the department as to how we would respond. clarifications on what i didn't communicate well either in the memo or here, or, you know, if we want to get into further clarifications as to the
substance of the issues. president miguel: thank you. i have some public comment cards. susan brand holly, m.e.o. lawrence. >> good afternoon president miguel and members of the commission, i am susan brand holly representing historic knob hill. i appreciate the further explanation about his memo which i did respond to yesterday and i hope you had a chance to receive it. as i understand it and the tape shows from the last hearing, the commission declined to certify the fairmont eir and then gave direction to staff what to do to fix it. i think where the disconnect is possibly between what the commission required, and as i understand the memo, his staff is indicating it's unclear
whether project alternatives need to be analyzed. in fact, historic knob hill through myself and a lot of speakers clearly addressed why alternatives were needed, specifically because there may be significant environmental impacts that weren't adequately identified and the conclusions have not been adopted at this point by this commission, so there's a dispute and a lot of evidence that there are other significant impacts. the eir identifies a potential significant impact in terms of 9 project's impact on the residential historic district and the mitigation required is future environmental review that should mitigate it. one thing that was raised, i recall commissioner sugaya commented on the draft eir and others did, too, you can't assume it's mitigated as
significant. there's also analysis of the impact of the new tower on the current landmark. that's another area in which there's question. so what was requested by this commission is alternatives be considered including rehabilitation of the tower as opposed to the demolition and reconstruction. we also have presented as concerns that the project objective, in calling for demolition as an objective when really, it's a means to an end, not a proper ceqa objective and there's case law to support that. and the description that doesn't really show you what the project will look like is inadequate. so fundamental problems. it should be clear from the action the commission already took that there's fundamental revisions that the eir needed, including additional alternatives. no question these all relate to environmental issues [buzzer]
>> they are not beyond the scope of ceqa and you are not allowed to do more than the law requires. but all of these things relate to environmental issues, the historic resources, traffic and noise issues, as well. there were a lot of things raised. and as i understand what the commission did and a transcript of your hearing will she, there wag a lot of direction given to staff and that should be clarified busker. president miguel: thank you. >> thank you. >> mr. miguel, did you call emil lawrence? president miguel: emil lawrence. >> my name is emil lawrence. good afternoon. i've been a resident in san francisco county for 41 years now. two and a half years ago, i had a problem with a tenant or landlord that did 15 abatements
on asbestos without filing any proper permits. president miguel: excuse me, sir, are you commenting on this agenda item? >> am i what, sir? president miguel: we are on a particular agenda item. >> this is connected with the fairmont is what i understand. president miguel: is it. >> yes, sir, i will bring it in line. on 52-unit building i understood you could do asbestos abasements without any proper permits and violation of federal laws under osha, asbestos is a deadly, deadly flake that you can't see, you can't taste, but you can breathe and once it gets into your lungs, it stays there until you die. if you look at the fairmont in terms of the tons of asbestos, i have seen no environmental report how that would be
contained when san francisco has only one air quality man for the whole city. it's a major problem. i am a taxi driver in the city and county of san francisco. i go over that hill 15 times a day. in terms of the wind bursts and air quality, asbestos would be floating all over the city from that construction project because there is no system in place, in this county to comply with osha laws, in terms of placing signs in every room of the hotel, telling them there's as best boss work going on, and also block by block, notifying them asbestos work is taking mace, also notifying every tourist that asbestos work is taking place r. any project that goes over the hill with the fairmont would be in violation of federal laws. not just one, but a multitude
and based on the federal guidelines in which there would be no or total accountability on medical problems until the day that person died if he was afflicted with asbestos problems. if you breathe asbestos today, you don't come down with a problem for 10 or 15 years. and then everybody says you didn't breathe it at my place. [buzzer] i lived at 1650 octavia, owned by gerald dowd, where he did knowingly, asbestos abasement and had the people living in the unit without proper personals and without notifying the city that asbestos work was taking place. i believe that's going to take place here at the fairmont if they attempt to demolish those two buildings in the back without federal controls [buzzer. >> i thank you for your time. one last thing is i submitted -- president miguel: thank you,
leave them there. the secretary will take care of them. >> i have three left. >> thank you. president miguel: additional public comment on this item? >> sue hester, i want to supplement comments made by susan brand holly. i am the attorney for local 2. i have questions about the directions that mr. wyco successes on page two. i do not think it appropriate for the commission to give direction on the alternatives at this point under any circumstances. the eir record was closed. it was not a certification of the eir. this commission may not discuss alternatives to the project as he seems to indicate. he -- i mean, i am reading what
this paragraph that starts out, on the other hand, as questioning the commission for direction on what alternatives you want to be really actively considering. i don't think you can do that. what you said in your comments when you voted was what the deficiencies were, and there were clearly questions raised by the public about the inadequacies of the analysis on a re-use alternative. that was picked up in the summary that commissioner sugaya did, and perhaps one of the other commissioners. i don't have the transcript in front of me. but that is a huge issue. the re-use of that facility was disregarded because, as mr. wyco basically applied, it didn't
affect the tonga room. there's more than the tonga room at stake in this eir. the commissioners comments and public comments dealt with alternatives. i do not believe trolling for additional information from the commissioners is proper under ceqa. perhaps this was reviewed by the city attorney before this was sent out. i would actually be a little shocked if it had been. but i do not believe it is anywhere near acceptable for the commission to be saying how you want to be dealing with alternatives, when the hearing is closed, thank you. president miguel: thank you. additional public comment on this item? if not, public comment is closed, commissioner antonini? commissioner antonini: , mr. wyco thank you for your comments. a couple of questions, i guess, but i just had some
observations, i guess, i certainly think we all know how the ceqa process can be very long and expensive. but that's not the point. the point is to make sure we completely analyze the impacts from ceqa of a proposed project. and i guess my question is, obviously, the no project alternative makes total sense, or variants of the project that are, perhaps, somewhat smaller, code compliant, etc. but i don't quite see why you would have to analyze an entirely different project in this case being the restoration, because, if, in fact, we went through the analysis, and we certified a particular report, this one or any other one, and then the project was approved, then it could come back and go through its own ceqa hearing at that time.
maybe i don't follow what you are saying on that. maybe i can get a clarification on that. >> i think what you said is correct, and combining your question and miss hester's comment. the reason i thought that besides several commissioners articulated they wanted to see other alternatives, why i thought it was out of order because you are not only deadlocked in a 3-3 vote, but you also continued the matter. i am not the expert on procedural whatever, but at least my understanding, and stacy did review this memo, it seemed to meit seemed to me thaa continuance was to receive the information with the possibility of having a vote based on addressing the information that was added to
the record, that that did not preclude addressing alternatives. on the other hand, if what you did was turned down the project in a way that it cannot be revisited at a subsequent hearing without starting the process over, i totally agree with miss hester that you don't study alternatives when you basically have refused to certify eir and some final way. i guess i'm asking for clarification from the city attorney, but my understanding of the memo was in doing to continuance action, you were leaving the door open for revisiting the question of certification based on the adequacy of the information we supplied. commissioner antonini: well, thank you. i kind of agree with the fact that what i was hearing was there should be alternatives analyzed, rather than the adequacy of the analysis itself, although there were comments both ways. i feel this is a continuing
discussion, in my mind, of this my main pois more of a thing for significance for future projects, but i guess the scope of analysis. if you had 820-story residential building and somebody in the public wanted five stories commercial or 30 story commercial building, or even another commissioner, it would seem like he would not have to analyze something that is so far away from what the project itself is. i guess that is where the line has to be decided, but maybe that is something that has to come out of whatever the state ceqa law dictates. am i think the issue is whether the alternative range -- >> i think the issue is whether the alternative range, at this hearing or another, even if there is not act -- ceqa
impact, but the range is not broad enough, my opinion is that it is appropriate to raise. it is obviously easiest to address that the earlier that it comes. it is much harder to address that particular answer because it makes the timing of it awkward. if point, he cannot act affirmatively. commissioner antonini: thank you. president miguel: commissioner sugaya? commissioner sugaya: for me, it is fairly clear. it does not seem unambiguous to me. we took action to unite certification. that could have stood by itself. i don't know what happens then. the project sponsor goes back in redesigns the project, does the whole eir all over, whatever happens.
but then we took action to continue it. the reason i thought we were continuing it was for nea to evaluate all the kinds of things that people testified or inadequacies in the final eir, the final eir being the final comments and responses document together with the final eir. we went through that list. i listened to the tape, have those written down. i don't want to go through it. i don't know if miss hester is correct. i don't want to negotiate the alternatives that were discussed. i think it is clear what the alternatives were that were discussed by listening to the tape. i would just mention one, which was the alternative re- examining the re-use of the power itself. there were a number of issues about a whole issue of demolition and how that came to
be without any analysis of the ir -- of the eir, and that is one aspect, the other aspect could have been even if that was considered, there was not an offended if -- there was not an alternative that looked at the reuse of that building. it could be reused, which calls into question the entire analysis and the eir itself. that testimony went to the ceiling heights of the building, which we were led to understand were too short, the configuration of the structural elements, which we were shown on the floor plan that there could be workable units in the building, etc. all of that led me to believe there should be an alternative that looked at, for example, the reuse of the tower. that to me is clear from the testimony. i don't think we need to revisit it here.
to me, the continuance was solely to look at these issues and not continue to talk about what it is that this re- evaluation is going to address. it seems to me that was already discussed at the hearing we previously had. president miguel: commissioner olague? vice president olague: i guess i am a little bit -- i think this calls into question the role of the commission as it relates to the certification of an eir or not. it was clear to me that we did not approve it, that we did not certify the eir. i think what is happening now, basically the staff is refuting the decision of the commission. i don't feel comfortable with that. i don't know of any time in the past six years i have been here that we have denied an eir that there has been a motion to continue. i was under the impression -- i did not support the motion to continue.
i was under the impression, like commissioner sugaya, it was to bring back certain issues the public made. i did not think we would be continuing it to reconsider whether we would be certified this environmental impact report. at some point, i would like the city attorney to sit with us, to sit with me, to clarify the role of the commission as it relates to our role in certify or not an eir. i was very comfortable with the comments of commissioner sugaya and moore as they challenge the content and whether or not the eir was adequate. i have never seen anything like this, or this debate ensues about -- where this debate ensues about the opinions of commissioners as it relates to any eir. we went through this with several other eir's that we
approved or disapproved or we have had certain challenges, and it has never been that we get this -- i know that one commissioner may have requested something like this, but i just think this is going outside of the process i am familiar with, as it relates to our role. >> i think commissioner sugaya described it correctly, you took action to deny this eir, but then you also took action to continue it. there was a 4-2 vote to continue until january. there was a vote. if you did not want to reconsider the eir, what was the point to continue? vice president olague: i did not vote to support that motion. >> the commission voted 4-2 to continue the eir. if as commissioner sugaya8d0z suggested it was to have additional analysis done, then staff can only conclude this
purpose was to consider the eir again. what other purpose would there be to continue it? vice president olague: and i think also -- well, ok. that is fine print -- that is fine. i did not understand that motion to be continuing the item of certification of the ir. i thought it was the point that commissioner sugaya raised. perhaps we could read the transcript. >> i thought it was clear -- this was not any attempt to second-guess you. believe me, i would prefer not to have written the memo. i would prefer not to write the memo. i try to clarify some questions that were raised. vice president olague: i read the letter that was drafted, and i think she makes valid points.
>> if commissioner sugaya -- he was the swing vote in the continuous motion. if that was the intent, i think the director has articulated to what end? were we gathering information on basically a project that cannot be certified without a new eir? we should do that as part of the new eir, not part of the continuous action. the point of continuance was to get new information. commissioner sugaya: the point of continuing it was to have staph address the various issues that were raised about what people thought were the failure of the eir itself. >> clearly, but what would be the point of doing that work, other than to have additional analysis for no product? i guess i am baffled.
commissioner sugaya: what seems to be at issue here is what does the staff analyze? if it includes an alternative, that is what people talked about. >> nobody is questioning whether we need to do additional work. the issue was what was the purpose of the continuance? commissioner sugaya: for the staff to do that additional work, not just the little things have to do with traffic and transportation, it was to address the issue of the inadequacy of the alternatives. if we get into that discussion, bringing up new alternatives of forces at recirculation, is that correct? >> i believe so. >> the new alternatives do not force circulation unless they are alternatives that avoid that. vice president olague: my sense is that some people -- i did not feel the same way based on my vote, but it seemed we were
being challenged by the project sponsor's attorney, and it was insinuated that we were acting outside of our given role as it relates to ceqa. we were put in a defensive 4 we were or were not and are given a role. i think the attorney of the project sponsor came up here and was out here five, 10 minutes challenging the commission's role, as i remember it. commissioner moore: i recall that the city attorney stated that the commission had found the eir inadequate and basically restated our decision. what went beyond this was the banter, giving each other more breathing room. as far as i am concerned, i did
not see that for me to put into question adding a couple of pages to the existing eir and everything would be fine. just like commissioner sugaya, it was almost re-scoping. there were substantial issues already missing from this eir, brought up clearly and concisely in the original draft comments when we first read the draft eir. but the department or whoever chose to completely ignore that. the shortcomings were only restated. there are almost identical to what was missing in the draft eir. i felt completely safe to not agree with the continuance, but did not feel threatened the decision would be made was the decision we made. in addition, every minute of this discussion sets incredibly bad precedent for what else we are opening up the door to future eir's and ceqa
discussions to be. i feel very uncomfortable. i have talked with the city attorney about it, expressing my discomfort with this even being on the agenda, but i voted against the continuance in the first place. president miguel: commissioner antonini? commissioner antonini: in reading this agenda item, this was an informational hearing item, and it was continued until january 27. is that the date? secretary avery: january 27. commissioner antonini: that was myé have been the maker of the motion, i am not sure. the scope of what will be taken up when this is resumed on the 27th could be the subject of discussion, and i certainly think whether or not an alternative has to be included with the pretension that it is
something we are discussing today, but certainly there were comments about other parts of it regarding some impact, whether the analysis was thorough enough or not. but that is what i remember from the hearing. i assume we are moving forward to the 27th, or whatever the date is in january, to continue our discussion, and the staff will try to answer the commissioners' requests as far as alternative information with alternatives or things that may not have been analyzed. hose commissioners who t that way. president miguel: commissioner olague? vice president olague: i would ask the city attorney to review the transcripts of that hearing and to determine what the intention of the motion was, really. we seem to have some debate even from one of the persons who
voted for the motion. i just think as soon as possible we need to have a public hearing that we have been planning for over a year about ceqa and the department's approach to it, and i guess we also have to include now what authority the commission has or does not have as relates to this issue, since we were challenged so clearly by the project sponsor's attorney, i felt, last hearing. >> i think for whatever reason -- president miguel: we were told -- vice president olague: we were told -- president miguel: i am not interested in a challenge from a member of the public. with the city attorney comment? >>